NEW HOPE FOR JUSTICE

7. December 2008 by Rev Young.

As we gain ground in reforming juvenile justice policies, there seems to be another movement growing.  This movement is seeking to install practices and guidelines that would hold the criminal justice system accountable for their actions to prevent the wrongful incarceration of innocent people.  It will also, as a byproduct, keep our criminal justice system from stepping on the civil and constitutional rights of the accused insuring them of a fair trial and fair sentencing practices.  While this seems idealistic at the present time, I believe we will see sweeping changes as a result of diligent advocates, very public mishandling of cases (as is very evident with the 8 year old Arizona boy) and attorney’s who are willing to challenge our current system.  If you have not read the post at “Free Jonny”, please do so.  Justice Fellowship has joined forces with the Innocence Project to begin a movement in our country toward better prosecutorial practices.  Follow this link http://s246427087.onlinehome.us/freejonny/ .  You can also view the 48 HOURS Mystery program on Tim Masters (wrongfully accused and freed after 10 years) on the web.

However, even passed the incarceration of the innocent,  comes the question of the protection of rights.  If the rights of the accused are not protected they will not receive a fair trial, will receive exaggerated sentences, and spend years trying to undo the injustice through appellate courts.  Nathan Yabanez had no one looking out for him, no one defending him and consequently he lost his life to prison.  Now, through the appeals process, his current attorney is trying to undo the damage.  Read On……..

Making another bid for justice

New trial sought for teen convicted of killing mother

By Sue Lindsay, Rocky Mountain News (Contact)

Published December 6, 2008 at 12:05 a.m.
Updated December 6, 2008 at 1:35 a.m.

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Ybanez, 27, may get another chance for trial in mom’s death.

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Ten years ago, 17-year-old Nathan Ybanez was convicted of murdering his mother.

His trial in Douglas County was remarkable for its brevity. It took three days from jury selection to conviction and sentence of life in prison without parole.

The trial was also remarkable because Ybanez’s attorney - hired by the teen’s father - never appealed the conviction. Appeals of murder convictions are almost always filed.

Now, another attorney, Michael Gallagher, is working to get Ybanez a fresh shot at justice, based on evidence suggesting Ybanez was physically, sexually and psychologically abused by his parents for years - evidence that was never presented at his trial.

“Nathan’s attorney called no witnesses,” Gallagher argued in his motion for a retrial. “He presented no evidence. He failed to cross-examine Nathan’s father, who retained him, about the abusive home environment.”

The reason, suggested Gallagher, was the attorney’s inherent conflict of interest.

“Simply put, Nathan could not be defended by an attorney hired by Nathan’s abusive father because that abuse was the heart of Nathan’s defense.”

Last month, a weeklong hearing on the motion for retrial was set to take place.

But an eleventh-hour move by prosecutors seeking more information about the sex abuse claims derailed that hearing until next year.

On Nov. 14, Ybanez observed his 27th birthday in a prison cell. Without extraordinary luck and the kindness of strangers, it’s where he’ll die.

No mention of abuse

Sixteen-year-old Nathan Ybanez was arrested early June 6, 1998, as he was dumping his dead mother’s body, rolled up in a blood-soaked rug, in Daniels Park near Sedalia.

Julie Ybanez, 43, was at her townhome in Douglas County the day before when she was clubbed and strangled with fireplace tongs.

Ybanez told police he was in the middle of a heated argument with his mother when he picked up the tongs and hit her in the head.

Ybanez and his friend Erik Jensen, then 17, were charged and later convicted of her murder in separate trials.

Ybanez’s father, Roger Ybanez, hired high-profile Denver lawyer Craig Truman for $90,000 plus costs and wound up paying him $30,000, according to court records.

Although the prosecution turned over interviews and social services records that indicated a history of physical and verbal abuse, this wasn’t investigated or mentioned in the teen’s defense, Gallagher said in his motion for a new trial.

“His attorney failed to develop or present any defense at all,” Gallagher said.

But prosecutors say Ybanez’s current defense team is merely taking issue with the defense strategy Truman chose in the face of overwhelming evidence of his client’s guilt.

Truman’s strategy

Truman is a criminal defense lawyer who has represented thousands of clients during more than 30 years of practice.

Prosecutors say Truman chose not to open the can of worms of abuse in the Ybanez home because that defense would have supplied a motive for first-degree murder. Instead, Truman argued that Ybanez’s friend Jensen strangled Julie Ybanez and was the dominant figure in the murder.

“It was against all this evidence that Mr. Truman had to work against,” prosecutor Derry Rice said in his response to Gallagher’s motion for a new trial. “Mr. Truman decided the best he could hope for was to create credibility with the jury and hope they would accept his argument that this was second-degree murder, not first-degree murder.”

Rice, Gallagher and Truman declined to discuss the case.

Gallagher also wouldn’t allow Nathan Ybanez to be interviewed for this story; however, the Rocky Mountain Newshas interviewed Ybanez twice on previous occasions.

Roger Ybanez has admitted losing his temper with his son several times during the year before his wife was murdered but flatly denies any sexual abuse. He declined to comment further for this story.

Gallagher said the financing of Ybanez’s appeal is confidential, but other sources said contributions came in after the Ybanez case received national publicity, including a story in Rolling Stone magazine.

Gallagher is asking the court to grant Ybanez a new trial, allow an appeal of his conviction or rule that his sentence to life without parole is unconstitutional. The district attorney’s office contends that Ybanez is entitled to none of these.

“The evidence against the defendant was overwhelming,” Rice wrote. “The evidence showed he killed her because she tried to keep him from using drugs, getting bad grades in school and from hanging around friends who affected his behavior adversely. He killed her because she wanted to send him to a military school to get him away from these negative influences.”

But Gallagher maintains the jury needed to hear about the abuse Ybanez suffered that was central to his defense.

Evidence of abuse is commonly presented as a defense in murder cases. Nathan Thill, for example, convicted of killing one person and wounding another at a Denver bus stop in 1997, presented evidence of severe childhood abuse and mental health problems. It was enough to keep a jury from being able to reach a verdict in his murder trial, and spared him a possible death sentence.

Ran away repeatedly

The abusive home Ybanez grew up in was no secret to his close friends and their parents, who had reported problems to social services, school counselors and police.

Friends told police that Ybanez’s father beat him and that the teen kept a bat in his room for protection, according to court records. Friends said that Ybanez’s mother was obsessively controlling and verbally abusive.

Eric Jensen’s parents had tried to help Ybanez and were among those who reported the abuse. Social services did nothing and police sent him back home, said Pat Jensen.

“The police became an active participant in sending him back to the torture chamber where the same thing happens all over again,” she said.

Ybanez had run away from home repeatedly, once appearing on on a friend’s doorstep in the middle of the night in 1997, barefoot, in his underwear with a rock in his hand.

He said he had fled his home after his father went on a rampage, and he carried the rock for self-defense in case his father found him.

Ybanez called police and asked them to find another place for him to live in August 1997, refusing to say why he had run away but telling them he was “unable to live at home with his parents.” The police report states that “Nathan requested social services be contacted for relocation, unable to function at home.”

Ybanez told social services that his “dad tried to strangle him” and he was “afraid to go home.” But he was returned home to his parents.

The jury in Nathan Ybanez’s murder trial heard none of this.

In his opening statement during the trial, Truman told the jury Ybanez’s parents disciplined him “out of love” and concern for his future. He said the teen’s friends and their parents had wrongly characterized their actions as abuse.

When Ybanez’s father testified as a prosecution witness, Truman didn’t cross-examine him about the abuse, instead allowing Roger Ybanez to establish that his son grew up in a loving home, Gallagher said.

During his closing argument, Truman agreed with prosecutors that perhaps there was a “hole” in his client’s soul, Gallagher said.

‘Better off in prison’

The first time Ybanez spoke publicly of the alleged abuse was during his testimony in Jensen’s sentence reconsideration hearing in 2005.

He described being beaten by his father on numerous occasions and being hit with wooden spoons by his mother when he was very young.

He described one night that his father threw him against the wall and began choking him.Ybanez said he was scared of his father.

“Because you never know what would upset him and it was always something usually small that you never would have thought and when he was upset, you never were certain what would happen,” he said.

Ybanez also first described a number of incidents of sexual abuse by his parents during this hearing.

“When he testified at (Jensen’s reconsideration hearing), all this all came pouring out of him in the courtroom,” said Jeff Pagliuca, Jensen’s defense attorney.

“There is no doubt in my mind that this kid was significantly traumatized and that led to the whole thing,” Pagliuca said.Ybanez was not examined by a clinical or forensic psychologist or psychiatrist before his murder trial, Gallagher said. Only a battery of basic psychological tests was performed, he said.

Gallagher contends that Ybanez’s case “is a test of the integrity of our judicial system.”

He argues that Nathan Ybanez needed to be advised of his attorney’s conflict of interest and needed to waive it if he wanted a lawyer hired by his father to represent him.

Truman was hamstrung because of the conflict, Gallagher contends, and failed to present the abuse evidence that could have persuaded a jury to reject a first-degree murder conviction.

In addition to contending that his defense attorney failed him, Gallagher also argues that the sentence Ybanez received is unconstitutionally harsh.

Since Ybanez was convicted, Colorado law has been changed so that juveniles convicted of murder as adults can no longer be sentenced to life in prison without parole.

What’s next?

* A five-day hearing on the motion for a new trial or reconsideration of sentence is set to begin Feb. 23.

The Ybanez case

* August and September 1997: First police reports that Nathan Ybanez has run away from home.

* Jan. 31, 1998: Roger Ybanez asks police for assistance in taking Nathan Ybanez to military school.

* March 18, 1998: Another runaway report.

* June 5, 1998: Nathan Ybanez kills Julie Ybanez at their townhome. Erik Jensen is present.

* June 6, 1998: Nathan Ybanez is arrested dumping his mother’s body in Daniels Park.

* Oct. 18, 1999: Ybanez’s trial begins with jury selection in Douglas County District Court.

* Oct. 21, 1999: Ybanez is convicted of first-degree murder and sentenced to life in prison without parole.

* February 2005: Ybanez testifies in the sentence reconsideration hearing for his friend and co-defendant Erik Jensen.

* September 2005: Ybanez’s case is featured in a four-part series by the Rocky Mountain News on juveniles serving life prison terms without possibility of parole.

* Aug. 24, 2007: Motion filed for a new trial or sentence reconsideration in the Nathan Ybanez case.

Posted in Legal News, Juvenile Reform Advocates | Print | No Comments »

Texas Leads the Way - Open File Policy

4. December 2008 by Rev Young.

 For those of us who have experienced our justice system in action through the case of our child or loved one, we have found our justice system to be mired in lawlessness.  That seems to be a very bold statement until you begin looking at the myriad of cases and the constitutional rights violations that are present in many cases.  The other problem with criminal justice is that, in most states, the prosecuting attorney and the defense attorney are not playing with the same set of facts.  They hold their cards close to their chest and wait to play the cards at the appropriate time.  That leaves the defendant caught in a game of chance and not in a system of justice.  I have two articles to present you with.  The one below again demonstrates Texas’ willingness to confront the issue of justice and actually set a course for the rest of the nation to follow.  The other article (which I will post on http://s246427087.onlinehome.us/freejonny/) concerns a call to action concerning judicial accountability and holding the criminal justice system accountable so that we no longer incarcerate the wrong man for a crime he did not commit and waste a portion of his life.  I also want to let you know that the story of Tim Masters, who was wrongfully convicted and had to fight his way back to freedom, recently had his story told on “48 Hours Mystery”.  There seems to be movement coming that will begin to hold our criminal justice system accountable to help prevent wrongful convictions and lawless acts by our authorities.  Read on…….   Thank You Pam!

New Open-File Policy Includes Appellate Info

John Council

Texas Lawyer

10-06-2008

When Craig Watkins took over as Dallas County district attorney in January 2007, one of the first big administrative changes he made was instituting an open-file policy that allows criminal-defense attorneys to see a prosecutor’s file before trial. Now he has taken that policy one step further and the implications could be huge, several appellate experts say.

As of Sept. 22, Watkins changed his open-file policy to include all post-conviction matters, meaning criminal-defense lawyers can now examine any of the thousands of case files the Dallas County District Attorney’s Office has handled in the past. Watkins says the office still has decades-old case files in storage.

“The idea is we have an open-file policy at trial, so why would we have anything to hide during the writ process?” Watkins says.

While some appellate lawyers say prosecutors have allowed them to see post-conviction files on a case-by-case basis, Watkins’ pol-icy appears to be a first-of-its-kind in Texas.

The policy change is just another effort to ensure that the wrong people aren’t in prison, says Watkins, whose office has worked to free numerous inmates — most of whom were convicted of rape charges — on the basis of DNA evidence. He formed a Conviction Integrity Unit within his office that examines innocence claims filed by prisoners. And last month, Watkins announced that his office would begin re-viewing the Dallas convictions of death-row inmates for possible errors.

Watkins says his efforts to ensure that people aren’t wrongfully imprisoned are paying dividends in the courtroom. He says a good example is a case his prosecutors tried recently in which a jury found a man guilty of capital murder in 30 minutes — a conviction that re-sulted in an automatic life sentence.

“I talked to the jury afterward. And they said, ‘Because of what you’re doing, we’re more apt to believe you. If you’re using your resources to make sure an innocent man isn’t being prosecuted, we believe you,’ ” Watkins says. “If you’re a prosecutor, that’s what you want. You want credibility. We have a lot more convictions than exonerations. And it’s really making Dallas County safer.”

Gary Udashen, a criminal-defense lawyer and partner in Dallas’ Sorrels Udashen & Anton, says he believes changing the policy to allow criminal-defense lawyers handling habeas corpus writs to see the files will have a significant impact on a defendant’s appeal.

“I think what we’re going to find is . . . exculpatory evidence that may have not been released to the defense,” Udashen says.

Since the U.S. Supreme Court’s opinion in 1963’s Brady v. Maryland, prosecutors have been required to turn over exculpatory evidence to the defense. But in Texas, discovery procedures vary between DAs’ offices. Some, such as the Tarrant County District Attor-ney’s Office, have had an open-file policy since the early 1970s that allows criminal-defense lawyers to see everything in a case file except attorney work product and victim’s and witnesses’ personal information. But other DAs’ offices leave it up to individual prosecutors handling a case as to what information they want to show the defense without the need for formal discovery proceedings.

“When I’ve had an opportunity to look at old DA files, I have found things in there that were Brady materials that should have been turned over to the defense,” says Udashen, who already has requested to look at several Dallas County prosecutors’ files on behalf of his clients. One file Udashen has requested under the new policy involves Randy Halprin, a death-row defendant convicted in 2003 of murdering an Irving police officer after a prison escape.

In his experience, materials prosecutors don’t turn over to the defense result from negligence rather than willfulness, Udashen says. He says it is often hard for prosecutors to understand what evidence may be valuable to the defense — a problem that does not arise in DAs’ offices that have open-file policies.

“Every once in a while, there’s a big piece of exculpatory evidence that a prosecutor willingly withholds,” Udashen says. “But more often the prosecutor just ignores it or doesn’t pay attention to it.”

Maurie Levin, senior staff attorney at the Texas Defender Service, applauds the latest move by the Dallas County DA’s Office.

“I think it’s a fabulous development and the right decision on their part because of their interest in not just innocence cases but in serving justice,” says Levin, who teaches the Capital Punishment Clinic at the University of Texas School of Law.

Levin says the new policy could result in criminal-defense lawyers discovering much more than just Brady evidence for cli-ents’ appeals.

“Some of the things that have been discovered in DAs’ case files are the race coding that took place on the jury sheets,” says Levin, referring to possible violations of Batson v. Kentucky, the 1986 U.S. Supreme Court opinion that prevents potential jurors from being struck from a venire panel based solely on their race. “There’s the potential for many types of claims that go to the fairness of the trial, not just inno-cence.”

Cause for Concern?

But changing an open-file policy to include post-conviction matters concerns some lawyers.

Criminal-defense lawyer Christie Williams says there could be some unintended consequences of changing the open-file policy to include appellate matters.

Williams, who was a Dallas County assistant DA from 1994 until 1999, says some Dallas prosecutors documented in their files what information was turned over to the defense and others did not. “That’s the big problem is how do you know what was disclosed and what wasn’t,” says Williams, who is a partner in the Austin office of Mills & Williams.

Williams also points out that a defendant’s trial lawyer and appellate lawyer are rarely the same person. “You’ve got a completely different writ lawyer. All he’s relying on is the [trial] defense lawyer’s file and now the prosecutor’s file.”

That’s a concern shared by Rob Kepple, executive director of the Texas District & County Attorneys Association.

“I think the angst and the worry is if you start to let someone graze the landscape of a 20-year-old case where no one has a good memory, you’re going to end up with poor memories of what was turned over and what wasn’t,” Kepple says. “You’re just setting yourself up for questions that can’t easily be resolved.”

The Denton County District Attorney’s Office instituted an open-file policy in 2007 for cases that are pending in trial court. But the office has not considered changing that policy to include post-conviction appeals, says First Assistant DA Jamie Beck. Denton prosecutors will exchange discovery with defense lawyers during appeals on a case-by-case basis, Beck says. But instituting a broader open-file policy to include all appellate matters gives her pause.

“At that point we have a stake in protecting the conviction and protecting the verdict,” she says. Beck worries that changing the open-file policy to include appellate matters would force prosecutors to retry their cases on appeal. On appeal, lawyers should be concerned more with legal issues than evidentiary issues, she says.

Dallas’ new policy could also result in a flood of requests from prisoners who want copies of their case files, says Alan Levy, chief of the criminal division of the Tarrant County DA’s office.

“If you get a lot of requests, you’re going to need a lot of manpower,” Levy says.

But Watkins doesn’t anticipate that being a problem. He says his office has not been flooded with DNA-testing requests, even in the wake of numerous exonerations in Dallas County.

Watkins also says that some lawyers in his appellate division were resistant to the policy change for all of the reasons mentioned above — concerns he listened to.

“I don’t want yes-men in this office. I’m not right on everything and there was some dissent,” Watkins says.

“In any situation, you’re going to have some kinks,” Watkins adds. “But the issue of doing justice will trump any issues that I con-sider small that are result of this policy.”

Michael Ware, head of the Conviction Integrity Unit in the Dallas County DA’s Office, agrees.

“I mean, what’s there to be worried about other than, if it means there is additional work to do, there’s additional work to do,” Ware says. “We’re going to work all of that stuff out.”

Michael Casillas, head of the appellate division in the Dallas County DA’s Office, says he’s ready for the challenge.

Notes Casillas: “I’m looking at it as if we’re entering a brave new world and we’re going to play it by ear.”

Posted in Legal News, Juvenile Reform Advocates | Print | 1 Comment »

Reality or Make Believe?

4. December 2008 by admin.

“The Children all nestled and snug in their beds while visions of sugar plums dance in their heads……”  Santa Claus is coming and children everywhere are making their Christmas wish lists and dreaming of the day to come when wonderful presents are piled under the Christmas tree.

Except for one little boy in Arizona who spends his days in a juvenile detention facility charged with the murder of his father and his fathers best friend.  Many of us who advocate for juvenile justice see this case as the epitome of the flaws in our juvenile justice system.  There are so many flaws in this case that we don’t even know how they can move forward with this case…….yet they are. 

Let us begin with the CLEAR FACT that this 8 year old boy does not know the difference between real and make believe.  Santa Claus, Superman, the tooth faerie and all other make believe characters are as real to him as the postman, the neighbor or his mom.  And pretending to be someone else, engaging in make believe scenarios or any other type of fantasy is part of his every day world.  Yet they interrogated him and believed he was responsible for this act of violence.  The interrogation process is under much scrutiny by human rights and child rights activists.  The practices used by the interrogating officers was questionable at best.  Leading questions presented to an 8 year old boy to bring about their desired result. 

What disturbs me the most is that the officers and investigators in charge, CHOSE, to believe and PERSUE this avenue by arresting and charging this young boy.  Of course I am not privy to the case work and I do not know the evidence they are basing their assumption on.  However, I do know that once they have a suspect (no matter the age) in custody, they will not willingly back down no matter the cost.  Even if it costs this young man his future and life.

I cannot imagine the torture and pain that his mother is experiencing.  Knowing that her little boy is being held in a juvenile detention facility, mostly isolated from other human beings (that in itself a torture that should not be allowed) and left all alone in a very frightening world.  If this young man and his mother had no other traumatic issues in their lives, they will be forever scared by this.  No matter if this young man is innocent or not, this experience will forever shape him.  He will never be the same…..  How can we justify this action against a child…..and call ourselves the leader of nations? 

Below is the latest update. 

Plea deal offered to 8-year-old murder suspect

     

BOB CHRISTIE | November 30, 2008 |

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PHOENIX — Prosecutors have offered a plea deal to an 8-year-old boy charged with murder in the shooting deaths of his father and another man in their eastern Arizona home, court records show.

Complete details of the offer weren’t spelled out in a court filing posted Saturday on the Apache County Superior Court’s Web site.

But County Attorney Criss Candelaria wrote that he has “tendered a plea offer to the juvenile’s attorneys that would resolve all the charges in the juvenile court contingent on the results of the mental health evaluations.”

Candelaria was responding to a defense motion seeking to block him from dropping one of two first-degree murder charges the boy faces in the deaths of his father, Vincent Romero, 29, and Timothy Romans, 39, earlier this month.

Defense attorney Benjamin Brewer argued in a filing Tuesday that prosecutors wanted the charge dismissed so they could refile it when the boy was older and pursue case in adult court.

Defense attorney Benjamin Brewer argued in a filing Tuesday that prosecutors wanted the charge dismissed so they could refile it when the boy was older and pursue case in adult court.

The prosecutor explained in his response to Brewer’s opposition filing that he wasn’t trying to obtain an unfair advantage, but he pressed for the dismissal because the judicial system isn’t equipped to deal with an 8-year-old charged with murder.

“It is done to ensure that the juvenile and the two murder victims in this case do not fall through the cracks in the system that might occur if both charges remain in the pending delinquency petition,” Candelaria wrote.

Candelaria explained that the boy could be found incompetent to stand trial, and if that happened, the court’s options would be limited.

The court would be required to order efforts to restore the boy to competency, but if that couldn’t be done within about eight months, the judge would be required by law to dismiss the criminal case and bar it from being refiled.

The court would then be required to initiate civil commitment proceedings, Candelaria wrote. If the boy is found incompetent because of his age, he wouldn’t fit the definition of a mentally disordered person and no treatment would be available.

“Such a result denies the victims and public of any sense of justice for these heinous murders,” Candelaria wrote. “It also denies the juvenile the rehabilitative services that he apparently needs to both deal with why he was capable of committing these murders and to assist him with the grief and remorse that he is probably feeling.”

Police in St. Johns found Romero and Romans shot to death after the boy ran to a neighbor’s house on Nov. 5. The boy was questioned after Romans’ wife raised suspicions about him the next day, and in a videotape released by prosecutors, he admits pulling the trigger. Both men were shot several times with a .22-caliber rifle.

Romans worked with Romero and rented a room in his home.

Police reports say the boy told a state Child Protective Services worker that his 1,000th spanking would be his last.

The boy is being held in a county juvenile facility, although he was allowed to spend Thanksgiving with his mother.

Brewer said the boy is back in custody. The next court hearing is set for Dec. 8.

Posted in Prison Reform Advocates, Juvenile Reform Advocates | Print | No Comments »